Courting controversy 

They've organized a three-hour town hall meeting on a recent Saturday morning at the UAW, several pickets outside of downtown buildings and a series of legal actions in recent months with the same theme: The administrative policies and court orders issued by Wayne County Circuit Court Chief Judge Mary Beth Kelly are hurting the people of southeast Michigan.

From "abuse of power" to "bad management," the criticisms about Kelly have grown this year, as private conversations criticizing her leadership have spread to public calls for her ouster.

As chief judge, Kelly controls the vast Wayne County Circuit Court system, by far the largest in the state, involved in the lives of thousands of area residents through its oversight of civil, criminal and family legal matters.

Critics of Kelly — who came to the bench as an appointee of Republican Gov. John Engler in 1999 — sometimes characterize her policies as part of an effort by outstate conservatives to control leaders in the more liberal Detroit. They say some of her actions reflect the region's longtime inability to come to terms with racial issues. She's not making the correct, albeit difficult, decisions about how to effectively manage governmental operations with limited dollars, they say. And she should be stopped.

"I say Mary Beth Kelly has got to go," Detroit City Councilwoman Brenda Jones told one gathering held to "learn about the injustices taking place in our court system."

Kelly declined repeated requests from Metro Times for interviews for this article. One of her staff cited "current litigation" as preventing the judge from discussing ongoing issues.

But Kelly's opponents are getting louder and more visible.

"There's a lot going on in the court," says Wayne County Circuit Judge David Allen, who openly defied one of Judge Kelly's policies when he held an election for the chief judge in his court. She didn't win. It was a symbolic vote, but it showed a lack of support for her leadership from the judges she oversees.

A group of judges from the circuit court recently went so far as to send the Supreme Court an e-mail complaining about Kelly's tactics. They faulted her refusal to hold an election to secure a recommendation for chief judge, her attempt to privatize Friend of the Court services without discussion from other involved parties, and the prohibition of anyone but the chief judge to hear challenges to the composition of jury panels.

"It doesn't sit right with me," says Allen, who also spoke at the town hall meeting last month.

But in some of the court's chambers, the youngest and only female chief judge in Wayne County's court history has support.

"From my perspective, Mary Beth Kelly has been a very good chief judge," says Robert Colombo Jr., a judge in the Wayne County Circuit Court's civil division. He describes her 2001 appointment as co-chief judge as "coming to power in an unusual way," a cause of some lingering bitterness.

"She was not received very well by the bench. But to Judge Kelly's credit, because she is such a fine person, she tried to gather support and demonstrated that she could be a good leader and work within the system," Colombo says.


ON THE BENCH

Kelly was first appointed to the Wayne County Circuit Court Family Division as a judge by Gov. John Engler in 1999. She left behind a corporate practice in commercial litigation with the Detroit firm of Dickinson Wright. She had represented such clients as Northwest Airlines, Ameritech and Deloitte & Touche. Educated at University of Michigan for her undergraduate degree and Notre Dame Law School, her paternal grandparents were Irish immigrants. Her father, Patrick John Uetz, a teacher, coach and counselor in Detroit-area Catholic schools, was appointed director of the Michigan Youth Employment Program in 1977 by Gov. William Milliken.

As an appointed judge, Kelly had to run for re-election in 2000 and was unopposed. In 2001, the Michigan Supreme Court installed Kelly and Tim Kenny as co-chief judges. Kelly would run the Family Division and Friend of the Court, Kenny would oversee the Criminal Division and they would share the civil court. The pair inherited a $12 million budget deficit and poor morale among the 1,000 employees of the court, according to published reports at the time.

In 2002, Kelly finished 19th among the 22 candidates on the ballot. Twenty judges were elected. Despite that relative lack of support from voters, Kelly alone was appointed chief judge in 2003 and has said she aspires to the state Supreme Court. Kelly, a white Republican, became part of the county court system just a year after it swallowed up majority black Detroit's Recorder's Court. The Legislature voted to have Wayne County courts absorb the previously separated Detroit court's operations.

Anger over that decision remains, and many see recent controversies involving Kelly as a continuation of the Recorder's Court issue — white Republicans controlling how business is done in majority African-American Detroit. And the Supreme Court's procedure for appointing chief judges — which was instituted in 1995 — leaves many suspicious that the majority-Republican bench is continuing to control the Detroit-based court through its two-year appointments.

"It's a recipe for a lot of trouble and questions of control that might not materialize if the old system was still in place," says Bill Ballenger, editor of Inside Michigan Politics. "She seems to be a pretty fair-minded person trying to do the right thing most of the time, but critics or people who are angry about some particular issue or situation can always contend that she is not somebody selected by her peers, that she was superimposed on Detroit and Wayne County by outstate conservative Republicans."

The next chief judge appointment is scheduled for later this month, coming at a time when there's never been more controversy surrounding Kelly. While some complaints could be dismissed as backlash from attorneys losing income and unions potentially losing clout, Kelly's management style is broadly criticized for failing to build consensus, mirroring the conservative state Supreme Court's bidding and negatively affecting potentially hundreds of thousands of Wayne County residents.

Here's how, in three of the major issues:


IN JUVENILE COURT

On a recent morning, attorney Deborah Trent is in Judge Frank Szymanski's third-floor courtroom at the Lincoln Hall of Justice — the home of Wayne County Circuit Court's juvenile operations, where nearly 24,000 delinquency and abuse-neglect cases were filed last year. At this hearing, Trent is representing a mother whose four children are in two different foster homes. Also at the crowded table that crosses the width of the room are the attorney for the children, a case worker, the father and the father's attorney. The mother has a contagious illness and waits in the hallway with dozens of other parents, children, attorneys, case workers, therapists, psychologists and social workers who must appear at hearings and trials.

It's a complicated system designed to meet the legal — but also the multitude of psychological, medical, educational and basic — needs of the children.

At this hearing, Szymanski leads a review of the status of the parents' compliance with plans to move into suitable housing that will help them get their children back. The parties discuss the children's progress in school and the need for specialized medical care for two of the children's kidney and respiratory conditions. Trent argues the judge should amend an order to allow the mother to attend her children's medical appointments. He agrees.

As Szymanski is discussing the father's attendance at the appointments, Trent is paged on the speakers in the hallways throughout the building.

"Attorney Deborah Trent to room 1F," the court clerk's voice seeps through the closed hearing room door.

Even during the testimony at her current hearing, Trent hears her page to the next one. That's how business is done at Lincoln. It's a confusing system to a newcomer, but one in which Trent and other attorneys thrive.

When her hearing does conclude a few minutes later, she's out the door to meet with the mother in the hallway. Trent tells her she can go to medical appointments and updates her on the caseworkers' efforts to get the four children in the same foster home. They should be contacting the mother.

"If you don't hear anything, call me," Trent tells her.

"I need your number," the mother says.

Trent hands her a pen with her contact information and turns to find the nearest stairwell — the elevator isn't working today — to get to her next hearing on the first floor.

There she'll represent a teen who lives with her boyfriend's mother and has had her infant placed in foster care. The girl is waiting in the spectator seats of the hearing room. Trent scans the row of people until she sees the teen and motions the girl to move into the hallway where they'll confer before the hearing. There are no private conference areas. Clients and attorneys stand shoulder-to-shoulder in narrow halls between hearing rooms or meet in public seating areas along an outer wall.

It's not glamorous, but Trent says she and dozens of other attorneys wouldn't work anywhere else.

Last year, Judge Kelly announced she would change how attorneys were assigned to represent children. She issued an RFP (request for proposals) and invited lawyers to form new types of groups — popularly known as "pods" — which would then be assigned to each referee.

At Lincoln, seven judges work in juvenile court and have two referees each who hear pretrial motions, make recommendations to judges and otherwise help business move along.

Some existing groups like the Legal Aid Defenders also received assignments as a group. Attorneys like Trent had their caseloads limited.

Trent and other private attorneys complain that children are not better represented. One of Kelly's justifications for changing the system was inconsistency in representation. But now it's even worse, says Julie Hurwitz, a Detroit attorney who represents the private children's lawyers. One attorney from each of the assigned groups may be in their referee's room on only one certain day of the week. If children have hearings on a day that's different than a previous one, they won't have the same "pod" attorney. Hurwitz filed a lawsuit asking the Michigan Supreme Court to reverse Kelly's policy. The court refused.

"Until this new system, there would be one person who would be their lawyer. Now they have no idea," Hurwitz says. She's considering a federal lawsuit.

The "private bar," as the independently contracted lawyers like Trent are known, are being shut out of some cases. For some attorneys, that means a cut of about a third of their incomes from court-appointed cases.

But the judges may still appoint any lawyer they'd like to represent a child.

And they do order changes in children's counsel when group lawyers don't show up, don't do an adequate number of out-of-court meetings with the children or don't otherwise provide competent representation, says Judy Hartsfield, presiding judge of the juvenile division.

"Some attorney groups do a great job and some don't do such a great job," she says, declining to name groups.

Last week, Hartsfield held a hearing on a case involving the reduction of security level for a teen in treatment. As the hearing began, his group attorney wasn't there.

Katherine Gonzales, a private attorney, was in the building and available. She announced herself as "emergency house counsel" when the hearing began without the group attorney present.

"You're appointed his attorney," Hartsfield said from the bench. No records have been kept of how many group attorneys have been replaced by private bar attorneys, but Hartsfield knows it's many.

Hurwitz says many of those who do remain representing children and teens aren't the best lawyers for those clients.

"They're less experienced, less familiar, less competent in general than those who have been kicked out," Hurwitz says.

Court workers — from judges to referees to clerks and recorders — won't go on the record with their opinions about the new system and only offer anecdotes about its failure to correct the problems it was meant to solve. Privately, they'll say the attorneys are young, inexperienced and oblivious to the complicated nature of the cases. They worry that the groups are subcontracting work to attorneys who don't know the system and are only worried about meeting the terms of their employment — not providing good counsel.

In affidavits filed with the lawsuit, the attorneys also said the number of African-American attorneys representing children has decreased to less than half of the number under the old system.

"I believe African-American children need to see African-American attorneys in that role," one statement reads. "Further, African-American children benefit from seeing African-American people who they perceive as successful."

But none of the changes after the new system was implemented are official.

"The court has not done an evaluation study to determine what's better at this point," Hartsfield says.


AT THE FRIEND OF THE COURT

Shawndrica Simmons says she can't talk about Chief Judge Mary Beth Kelly without becoming angry.

"Forgive me, I'm trying to be polite here," she says in her crowded downtown office as she thinks carefully about the words she'll use to answer questions about negotiations for a contract to replace the one that expired in September and about Kelly's plans to privatize Friend of the Court operations and send some of Simmons' members to work for an independent contractor.

As president of AFSCME Local 3309, Simmons leads 315 Wayne County Circuit Court workers, including 169 from the Friend of the Court office.

In September — without any previous discussion, critics, including Simmons, say — Kelly announced she would accept bids for a private contractor to take over management of the services and retain the employees currently in those Local 3309-represented positions. Another 73 current employees would stay employed by the court.

That made negotiating a contract a challenge. "I can't negotiate if I don't know who it's for," Simmons says.

The Wayne County Board of Commissioners voted 14-1 in September to oppose the privatization. "Does Judge Kelly answer to anybody at all?" Commissioner Bernard Parker was quoted in the Detroit Free Press as saying.

Kelly's RFP called for bidders to increase the staffing level from the 169 employees in Simmons' unit to 225 employees. How staff could increase by 33 percent within the same budget is a question Simmons would like answered.

With 242 employees and at least 275,000 active cases, Wayne County's Friend of the Court is by far the busiest in the state. It collected about $314 million in child support funds in 2006, according to court documents, which was about one-fifth of the state's total. Two-thirds of its total $28 million budget is paid for by the federal government. The county pays about $900,000 toward the Friend of the Court operation.

AFSCME Council 25, the parent group to Local 3309, filed a request for a temporary restraining order for Kelly and the privatization effort. Last month, a Macomb County Circuit Court issued an injunction ruling that Kelly could not hire a contractor but could continue to solicit bids. A hearing was planned for this week.


LOOKING AT JURIES

When Richard Cunningham looked at the jury pool for his client, McDaniel Hopson, an African-American man facing trial in October 2006 for a drug offense, the Detroit attorney decided he had a problem.

Of the 34 potential jurors awaiting selection in Wayne County Circuit Judge Deborah Thomas's courtroom, 32 were white. He made an oral opposition to the jury-selection process.

"Race matters, it really does. The worldview really depends on your background. If you have everybody from sort of a homogeneous situation, there are a lot of things that aren't going to be discussed in a jury room," Cunningham says. "I'd probably feel it was unfair if it was a jury of all African-Americans or all Arab Americans speaking. To me, diversity is the key. You're going to get some discussion, you're going to have credibility issues that are extremely important."

Thomas adjourned the matter to research the issue.

A week later, Kelly issued an administrative order directing that all challenges to a jury's composition come to her for adjudication and a few weeks later issued another order that challenges to jury composition could only be heard after a defendant was convicted.

"Judge Kelly has decided that she and she alone will determine whether a person has a jury of their peers," Thomas says, "And she will determine it after the trial."

The Michigan Supreme Court in 2005 ordered that race, gender, religion or nationality couldn't be used in jury selection following efforts by Wayne County judges — including Thomas — to have more racially balanced juries. The Michigan Judges Association and the Michigan Department of Civil Rights opposed the Supreme Court's rule change.

A study by the National Center for State Courts, based in Williamsburg, Va., in 2006 found African-Americans comprised about 26 percent of jury pools in Wayne County compared to 40 percent of the area's population.

"The proportion of African-Americans in the Third Circuit jury pool was approximately half of what was expected given their representation in the community," the report said.

Kelly, according to published reports, has said she supports legislative action to expand jury pools including allowing convicted felons to serve.

Cunningham has challenged Kelly's order for another of his clients, Mark Henry Robinson, who was convicted of felonious assault and weapons charges in a November 2006 trial in front of Wayne County Circuit Judge James Callahan. In January, Cunningham filed a motion for a new trial on the grounds that Robinson's right to a fair trial was violated by the lack of African-Americans in the jury pool. Wayne County Prosecutor Kym Worthy objected and now the dispute is awaiting action from Kelly. Before Kelly's administrative orders, the trial judge would have decided such a motion.

"Everybody's concerned about this issue," Cunningham says.

Cunningham has filed legal motions for Kelly to remove herself from the case and return it to Judge Callahan, the trial judge. Kelly denied Cunningham's request.

"... this Court is satisfied that it is capable of ruling on defendant's new trial motion regarding the jury selection process in a fair, unbiased, and impartial manner and one that is solely based on proofs addressed by the parties under the appropriate legal standards," Kelly wrote.

In August, Kelly took away pre-trial hearings from Thomas, saying she had been moving too slowly. Kelly's order came after the courts' Docket Review Committee earlier in the summer had found Thomas had the most cases pending and the fewest cases tried.

But Thomas, a circuit judge since 1995, contends that Kelly began paying attention to her when she challenged the racial composition of juries, complaining they were not reflective of the area's African-American population.

"Who will be next?" Thomas asked. "The judges have to be able to rule the way the law applies."

Cunningham says he doesn't necessarily agree with those who say Kelly's management of the Wayne County Circuit Court is related to a statewide conspiracy against Detroit. But he worries about Kelly's heavy-handed orders dictating that only she will hear the challenges.

"I disagree with many of the things she's doing," he says. "It's like a power grab."

 
THE SUPREME'S NEXT MOVE

Wayne County voters won't get another chance to express their opinions of Kelly at the polls until 2008.

But the state Supreme Court soon will either re-appoint her as chief judge or choose a successor. An announcement of the chief judges for the next two-year term is planned this month, says Marcia McBrien, spokeswoman for the court.

Allen is one of a few judges who will publicly criticize Kelly. He says the Supreme Court should eliminate its rule for appointing chief judges and use the bench's vote in each court.

"What that did was result in two-way respect. The person that was the chief judge was elected by a majority of their peers. They gave respect back to their peers and the people that did the voting gave the respect back. Sadly, we don't have that," he says.

Sandra Svoboda is Metro Times staff writer. Contact her at 313-202-8015 or ssvoboda@metrotimes.com

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